eff: viewfinder-amicus-final

8/14/2019 EFF: viewfinder-amicus-final

http://slidepdf.com/reader/full/eff-viewfinder-amicus-final 1/32

05-5927-cvUnited States Court of Appeals

for the

Second Circuit

SARL LOUIS FERAUD INTERNATIONAL,

Plaintiff-Appellant,

S.A. PIERRE BALMAIN,

Consolidated-Plaintiff-Appellant,

– v. –

VIEWFINDER, INC., doing business as Firstview,

Defendant-Appellee.

_______________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR AMICI CURIAE ELECTRONIC FRONTIER

FOUNDATION, CENTER FOR DEMOCRACY AND

TECHNOLOGY, AND AMERICAN CIVIL LIBERTIES UNION IN

SUPPORT OF DEFENDANT-APPELLEE VIEWFINDER, INC.

WENDY SELTZER WS-4188Counsel for Amici Curiae250 Joralemon Street

Brooklyn, New York 11201(718) 780-7961



1

INTERESTS OF AMICI

The Electronic Frontier Foundation (“EFF”) is a nation-wide,

nonprofit, civil liberties organization working to protect rights in the digital

world. EFF actively encourages and challenges industry and government to

support free expression, privacy, and openness in the information society

and maintains one of the most-linked-to Web sites (www.eff.org) in the

world. EFF believes that free speech is a fundamental human right and that

free expression is vital to society.

The Center for Democracy and Technology (“CDT”) is a non-profit

public interest and Internet policy organization. CDT represents the public’s

interest in an open, decentralized Internet reflecting constitutional and

democratic values of free expression, privacy, and individual liberty.

The American Civil Liberties Union (“ACLU”) is a nationwide,

nonprofit, nonpartisan organization with more than 500,000 members

dedicated to the Constitutional principles of liberty and equality. The ACLU

has been at the forefront in numerous state and federal cases involving

freedom of expression on the Internet.



2

SUMMARY OF ARGUMENT

Freedom of expression has a long and cherished history in this nation.

Words and ideas, even those that challenge our most treasured values, enjoy

a measure of protection under our Constitution that is almost unheard of

elsewhere in the world. The French judgment that prompted this appeal

places our tradition of free expression in jeopardy. It represents a direct

attempt by a foreign nation to apply its law extraterritorially to restrict the

freedom of expression of U.S.-based online speakers who are protected by

the First Amendment. It does so because the Defendant, Viewfinder Inc.

(“Viewfinder”), has chosen the Internet as its means of communication.

The French court’s order is but one example of the sort of judgment

that this and other American courts can expect to see with increasing

frequency as Internet use expands throughout the world. Because of the

Internet’s global character, conflicts will inevitably arise concerning speech

protected by the U.S. Constitution but forbidden or more heavily regulated

in other countries. The court below correctly recognized that enforcement of

the French Order would violate basic First Amendment principles and

refused to permit the seeds of foreign censorship to be planted on U.S. soil.

Sarl Louis Feraud International v. Viewfinder Inc., 406 F.Supp.2d 274

(S.D.N.Y. 2005). This Court should affirm that judgment.



3

Perhaps in recognition of the obvious claim to constitutional

protection enjoyed by Appellee’s expression, Appellants do not challenge

the district court’s conclusion that the First Amendment protects

Viewfinder’s photographs and website, and focus instead on the lower

court’s factual findings and ruling on fair use. But this case was decided on

First Amendment grounds and the federal and state constitutions provide the

essential backdrop against which Appellants’ arguments must be considered.

Thus, First Amendment principles must inform any consideration of

Appellants’ arguments.

Quite obviously, the United States may not say what the laws of

another nation may be. It is one thing, however, for a foreign nation to use

its authority to silence or regulate speakers within its borders. It is quite

another for a foreign nation, entity or person to obtain a foreign judgment

and demand that a court in the United States silence a U.S.-based speaker

engaged in lawful, constitutionally protected speech. No American court

should become complicit in such censorship. To open the door to foreign

restrictions on U.S. speakers even the slightest crack would allow foreign

courts to impose restrictions on speech that even Congress could not validly

enact, fundamentally undermining First Amendment protections for Internet

speech. This door must be kept closed, and closed tightly, both by refusing



4

to enforce such judgments and by affirming thoughtful rulings, like the one

below, to preclude their in terrorem effects.

ARGUMENT

I. ENFORCEMENT OF THE FRENCH COURT ORDER IN THEUNITED STATES WOULD FUNDAMENTALLY CHANGE THENATURE OF THE INTERNET AS A MEDIUM OF FREEEXPRESSION

A. American Courts Have Recognized the Importance of the

Internet as a Unique New Medium of Communication

Since the advent of the Internet, U.S. courts have been presented with

a number of significant cases involving attempts to restrict information

available on the Internet and World Wide Web. This growing body of law

required courts to devote significant attention to the nature of the Internet as

a medium of communication and to assess its importance to the American

system of free expression.

The courts have been emphatic that the Internet is entitled to the

highest level of protection and that attempts to censor its content or silence

its speakers are to be viewed with extreme disfavor.1

In the seminal Internet

1 See, e.g., Ashcroft v. ACLU , 124 S.Ct. 2783 (2004), Reno v. ACLU , 521 U.S. 844(1997), American Booksellers Foundation for Free Expression v. Dean, 342 F.3d 96 (2d

Cir. 2003); Cyberspace Communications, Inc. v. Engler , 238 F.3d 420 (6th Cir. 2000)(Table), aff’g, 55 F. Supp. 2d 737 (E.D. Mich. 1999) (preliminary injunction); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); PSINet, Inc. v. Chapman, 167 F. Supp. 2d 878

(W.D. Va. 2001) (permanent injunction); Cyberspace Communications, Inc. v. Engler ,142 F. Supp. 2d 827 (E.D. Mich. 2001) (permanent injunction); PSINet, Inc. v. Chapman,

108 F. Supp. 2d 611 (W.D. Va. 2000) (preliminary injunction); American Libraries



5

speech case of Reno v. ACLU , 521 U.S. 844 (1997) ( Reno I ), the Supreme

Court held that there is “no basis for qualifying the level of First

Amendment scrutiny that should be applied to this medium.” Id . at 870; see

Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 566 (2002)

(“‘[t]he Internet ... offer[s] a forum for a true diversity of political discourse,

unique opportunities for cultural development, and myriad avenues for

intellectual activity.’ “ (quoting 47 U.S.C. § 230(a)(3) (1994 ed., Supp. V)).

The Internet is a source of information as “`diverse as human

thought.’“ Reno I , 521 U.S. at 851, 852 (quoting district court, 929 F.Supp.

824, 842 (E.D. Pa. 1996)), and has been characterized as “the most

participatory form of mass speech yet developed.” Reno I , 929 F.Supp. at

824 (Dalzell, J.). It offers a new and powerful democratic forum in which

anyone can become a “pamphleteer” or “a town crier with a voice that

resonates farther than it could from any soapbox.” Reno I , 521 U.S. at 870.

Expansion of the Internet has created countless new opportunities for self-

expression and discourse, ranging from the private diary to the multi-

million-reader blog, Web page, or even Webcast.

Ass’n. v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997); Shea v. Reno, 930 F. Supp. 916

(S.D.N.Y. 1996), aff’d , 521 U.S. 1113 (1997).



6

The Internet enables not only speech but also the First Amendment

right of association. Doe v. Ashcroft , 334 F.Supp.2d 471, 509-10 (S.D.N.Y.

2004) (“the importance of the Internet as a forum for speech and

association” is “undisputed”), appeal pending. The Internet, because of its

low barriers to entry, is an essentially participatory medium that not only

enables one-way publication but facilitates conversation. The medium hosts

tens of millions of dialogues carried out via e-mail, Web publications,

Usenet newsgroup message boards, and more, as individuals and

associations disseminate their opinions, ideas, photographs, and music to a

worldwide audience. For good reason, the courts have recognized that the

Internet “may well be the premier technological innovation of the present

age.” Pataki, 969 F.Supp. at 161.

A key characteristic of the Internet that is crucial here is the medium’s

global nature. Cyberspace is located in no particular place, has no

centralized control point, and is available to anyone, anywhere in the world

with access. Reno I , 521 U.S. at 851. This characteristic makes geography

“a virtually meaningless construct on the Internet.” Pataki, 969 F. Supp. at

169. In “the medium of cyberspace . . . anyone can build a soap box out of

web pages and speak her mind in the virtual village green to an audience

larger and more diverse than any of the Framers could have imagined.” Reno



7

II , 31 F.Supp.2d at 476. The Internet makes information available “‘not just

in Philadelphia, but also in Provo and Prague.’” Reno I , 521 U.S. at 854

(quoting 929 F.Supp. at 844).

Viewfinder’s website epitomizes the type of worldwide

communication made possible on the Internet. Although its services are in

English and are based in the United States, its home website at

http://www.firstview.com (hereinafter “firstVIEW”) is accessible globally,

as are all Internet sites. It is the global availability of Internet communication

that accounts for much of its speech value, but also forms the basis of the

legal dispute in this case.

B. Recognizing the French Court Judgment Would Undermine

Domestic Protection for Internet Communication

Recognizing the essential character of the Internet as a global

medium, American courts overwhelmingly have rejected attempts to censor

it. This is not true elsewhere. Other nations have imposed controls on the

Internet intended to silence disfavored expression originating within their

borders and to keep out disfavored expression originating abroad. At least 59

different countries limit freedom of expression online.2

2 Reporters Sans Frontieres, ENEMIES OF THE INTERNET 5 (2001)

(“ENEMIES OF THE INTERNET”); see also Leonard Sussman, CENSOR DOT



8

When nations restrict their own citizens’ access to news, information,

or ideas from abroad, the impact of their repressive policies remains

localized. However, when nations seek to control content on the Internet by

applying their domestic laws extraterritorially to speech originating in the

United States, the broader threat to freedom of expression is palpable.

China, which severely restricts Internet communication, including

most forms of dissent and the free reporting of news, serves as the most

obvious example of a nation whose approach to speech, if exported to the

United States, would directly conflict with the First Amendment. Chinese

officials have tried to stop online protest messages available on overseas

websites, including those based in the United States, from which much pro-

democracy speech emanates.3

In the past year, these concerns have only

grown with China’s regulation of U.S. companies doing business in China.

As the U.S. government recently noted, the Chinese government “adopted

measures to control print, broadcast, and electronic media more tightly and

pressured Internet companies to censor and restrict the content of material

available on-line.” U.S. Department of State, Supporting Human Rights and

GOV: THE INTERNET AND PRESS FREEDOM 2 (2000)<http://www.freedomhouse.org/pfs2000/sussman.html >.

3 See Leonard Sussman, CENSOR DOT GOV: THE INTERNET AND PRESS FREEDOM 2-3

(2000).



9

Democracy: The U.S. Record 2005 – 2006 ,

<http://www.state.gov/g/drl/rls/shrd/2005/63945.htm>. Major U.S.-based

Internet service providers (ISPs) have recently come under fire for their

acquiescence to online censorship demanded by the Chinese government.

See “Tech Firms Help Tyrants Keep their Grip,” Hiawatha Bray, The Boston

Globe, June 20, 2005, at C2.

Western democracies have also censored speech that is protected by

the First Amendment. For several years now, Yahoo! has been under the

cloud of a French judgment requiring it to block French citizens’ access to

Nazi material displayed or offered for sale on its United States site or face

significant daily fines. The French judgment was found unenforceable

because it violated the First Amendment. Yahoo! Inc. v. La Ligue Contre Le

Racisme et L’Antisemitisme, 169 F.Supp.2d 1181, 1194 (N.D.Cal. 2001)

(“the First Amendment precludes enforcement within the United States”),

reversed on other grounds, 433 F.3d 1199 (9th Cir. 2006) (en banc).4

Clearly, a foreign court judgment imposing significant daily fines on

U.S.-based speech that is perfectly lawful in the United States can

4 Although a majority of the eleven-judge en banc court found that the district court in

Yahoo! had personal jurisdiction over the defendants, six judges found that the actionshould either be dismissed for lack of ripeness or for lack of personal jurisdiction over the

defendants.



10

substantially harm the U.S. speaker. Although the Ninth Circuit reversed in

Yahoo!, it did so on jurisdictional grounds, not on the merits. Indeed, eight

of the eleven judges on the en banc panel expressly approved of the First

Amendment ruling by the court below in this case. Yahoo!, 433 F.3d at

1222 (“If it were true that the French court’s orders by their terms require

Yahoo! to block access by users in the United States, this would be a

different and much easier case [and] we would be inclined to agree with the

dissent.”) (citing Viewfinder ); id. at 1239 n.4 (“‘American courts have

recognized that foreign judgments that run afoul of First Amendment values

are inconsistent with our notions of what is fair and just, and conflict with

the strong public policy of our State [New York].’”) (quoting Viewfinder ,

406 F.Supp.2d at 282) (emphasis in original).

Granting recognition to the French court’s judgment would have

practical and legal ramifications that extend far beyond one nation’s law or a

single court order. The conclusion that the French Order may be enforced in

the United States despite its conflict with our constitutional freedoms would

establish an international regime in which any nation would be able to

enforce its legal and cultural “local community standards” on speakers in all

other nations. In such a regime, ISPs and content providers would have no



11

practical choice but to restrict their speech to the lowest common

denominator in order to avoid potentially crushing liability.

The implications of such a regime would be wide-sweeping given the

range of speech-restrictive laws in foreign nations that U.S. courts would be

required to enforce. In addition to China and France, a host of nations

impose restrictions on speech that would be deemed unconstitutional in the

United States. Saudi Arabia censors criticism of its government. Syria bans

Internet speech that is considered to be pro-Israel. The Australian

government attempted to ban websites protesting the World Trade

Organization under laws designed to regulate pornography. See “Secret Web

Bans in FOI Amendments,” Simon Hayes, The Australian, October 1, 2002.

More recently, Singapore has banned podcasts, audio recordings distributed

over the Internet, that discuss candidates in parliamentary elections. See

“Reporters group concerned about Web censorship ahead of Singapore

elections.” San Jose Mercury News, April 7, 2006,

<http://www.mercurynews.com/mld/mercurynews/business/14289678.htm>.

The impact of such a lowest common denominator approach is

measured not by counting the number of nations that already have sought to

apply their laws beyond their borders but by assessing the practical effects of



12

such an approach on website operators. Operators will face daunting tasks,

both legally and technically. They will be forced not only to take measures

to disable access to or remove any information that may be illegal any

foreign county, but they will also be required to steep themselves in the

vagaries of the laws of each and every foreign nation.

The Appellants’ reasoning would permit enforcement of any nation’s

limitations on Internet speech, regardless of the extent to which such

restrictions conflict with our fundamental freedoms. Amici believe that

freedom of expression is a fundamental human right and disagree strongly

with policies that deny individuals the right to voice their own dissent or to

hear a competing point of view. While some nations have made these policy

choices, they may not be permitted to export them, thus undermining

freedom of expression in the rest of the world. Yet that is the inevitable

result if foreign judgments restricting free speech are applied

extraterritorially.

National governments are not, of course, the only threat to speech. A

growing set of examples involves foreign libel or defamation judgments

against U.S.-based speakers. See Bangoura v. The Washington Post , [2004]

235 D.L.R. (4th) 564 (finding that Ontario was an appropriate forum for a



13

libel suit against the U.S.-based Washington Post for communications

appearing on its web page where the alleged libel was based on the

plaintiff’s work in Africa and where plaintiff only later became a citizen and

permanent resident of Canada), rev’d , [2005] O.J. No. 3849 (Ont. C.A.),

leave to appeal dismissed , [2005] SCCA No. 497 (Feb. 16, 2006); Dow

Jones & Co., Inc. v. Gutnick , [2002] HCA 56 (2002) (upholding jurisdiction

of Australian court over U.S.-based Dow Jones in libel action by South

African plaintiff living in Victoria, Australia, on the basis of an article

published on the defendant’s web site that was downloaded by subscribers in

Australia and limiting damages to that suffered by the plaintiff in Victoria);

see also, Seeking U.S. Turf for a Free-Speech Fight , Sara Ivery, N.Y. Times,

Apr. 4, 2005, at C8 (detailing U.S. declaratory judgment action filed by

author Rachel Ehrenfeld against Khalid bin Mahfouz, a Saudi sheik who had

sued her for libel in London over her book) ( Ehrenfeld v. Mahfouz, No. 04-

CV-9641(RCC) (S.D.N.Y.)).

Many ISPs and websites create valuable fora for speech and

communication – fora that are available to millions of speakers at little or no

charge. If they face growing fines imposed by foreign courts because of

constitutionally protected speech posted by them or their users, many service

providers will curtail their users’ ability to engage in the open and robust



14

speech and debate that is the hallmark of this medium. Indeed, the pressure

created by mounting foreign judgments against speech protected in this

country could threaten the business models of some service providers, and

thus could reduce the ability of millions of Americans to speak freely and

lawfully over the Internet.

Although some speakers might have the confidence and resources to

withstand such pressure, others would have little choice but to remove

lawful content from the Internet. The chilling effect would be particularly

acute for the many individuals and small organizations for whom the

Internet is an indispensable means of reaching an audience but who lack the

resources to participate in overseas legal proceedings.

Under such a regime, U.S. courts would become vehicles for

enforcing foreign speech restrictions on U.S. speakers. Such a rule is

fundamentally inconsistent with the First Amendment and with U.S. public

policy.

II. ENFORCEMENT OF THE FRENCH JUDGMENT WOULD BEREPUGNANT TO PUBLIC POLICY

Judgments of foreign courts are not entitled to automatic recognition

or enforcement in American courts. Wilson v. Marchington, 127 F.3d 805,

808 (9th Cir. 1997). Whether the forum court will honor a foreign judgment



15

is determined by principles of comity. Id . at 808. Among these is the rule

that a court need not enforce a foreign judgment if to do so will offend the

public policy of the forum state. Ackermann v. Levine, 788 F.2d 830, 837

(2d Cir. 1986); Laker Airways Ltd v. Sabena, Belgian World Airlines, 731

F.2d 909, 929, 931, 937, 943 (D.C. Cir. 1984); Yuen v. U.S. Stock Transfer

Co., 966 F. Supp. 944, 948 (C.D. Cal. 1997); see Hilton v. Guyot , 159 U.S.

113 (1895) (outlining fundamental principles of comity); N.Y. C.P.L.R.

5304(b)(4) (court may refuse to enforce foreign judgment that “is repugnant

to the public policy of this state”).

A classic example of a judgment that will not be enforced on publicpolicy grounds is a judgment that unconstitutionally impairs individual

rights of personal liberty. Ackermann v. Levine, 788 F.2d at 841; see Hilton

v. Guyot , 159 U.S. at 164, 193; Somportex Ltd v. Philadelphia Chewing

Gum Corp., 453 F.2d 435, 443 (3d Cir. 1971). This includes a judgment

based on laws or procedures that do not comport with fundamental First

Amendment principles or their state constitutional counterparts. See, e.g.,

Matusevitch v. Telnikoff , 877 F.Supp. 1 (D.D.C. 1995), aff’d on other

grounds, 159 F.3d 636 (D.C. Cir. (1998) (Table); Bachchan v. India Abroad

Publ’ns. Inc., 585 N.Y.S.2d 661 (N.Y. Sup. Ct. 1992). Similarly, judgments

cannot be enforced if they violate an explicit public policy expressed by

Congress. Here, enforcement of the French Order would violate public

policy as expressed in both statutory and constitutional law.

A. Enforcement of the French Judgment Would Violate theFirst Amendment

The firstVIEW website both displays its photographers’ artistry and

conveys news of the fashion shows it depicts to those unable to travel to



16

attend in person, including other magazines. This is publication of speech

entitled to full First Amendment protection.

The First Amendment freedom of the press applies with as much force

to Internet magazines as to the products of more traditional printing presses,

and as much to fashion publications as to political or literary ones.5 See

Bery v. City of New York , 97 F.3d 689, 694 (2d Cir. 1996) (“The First

Amendment’s fundamental purpose … is to protect all forms of peaceful

expression in all of its myriad manifestations.”) (protecting visual artists

selling their work at public places without vendors’ license) (citing Abood v.

Detroit Bd. of Educ., 431 U.S. 209, 231 (1977)).

Appellants apparently concede that Viewfinder’s images are protected

by the First Amendment, but they nevertheless seek to denigrate the degree

of protection for Viewfinder’s speech. This Court has properly rejected past

attempts to treat visual depictions as somehow less deserving. “Visual art is

as wide ranging in its depiction of ideas, concepts and emotions as any book,

treatise, pamphlet or other writing, and is similarly entitled to full First

Amendment protection.” Bery, 97 F.3d at 695. The Supreme Court has

5 It is well settled that “clothes are not copyrightable.” Knitwaves, Inc. v. Lollytogs Ltd .,71 F.3d 996, 1002 (2d Cir. 1995). Thus, this case does not present a conflict between the

First Amendment and U.S. copyright law.



17

clearly recognized that “the Constitution looks beyond written or spoken

words as mediums of expression.” Hurley v. Irish-American Gay, Lesbian

and Bisexual Group of Boston, 515 U.S. 557, 569 (1995). “Our cases have

recognized that the First Amendment shields such acts as saluting a flag (and

refusing to do so), wearing an armband to protest a war, displaying a red

flag, and even marching, walking or parading in uniforms displaying the

swastika.” Id . (internal citations and quotations omitted).

Indeed, the Supreme Court has rejected the reasoning of Spence v.

Washington , 418 U.S. 405 (1974), on which Appellants relied below, saying

that “a narrow, succinctly articulable message is not a condition of

constitutional protection”; if it were, the First Amendment “would never

reach the unquestionably shielded painting of Jackson Pollock, music of

Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.” Hurley, 515

U.S. at 569.

The Supreme Court has also adopted an inclusive definition of

“press,” striking a statute regulating distribution of “circulars, handbooks,

advertising, or literature of any kind.” Lovell v. City of Griffin, 303 U.S. 444

(1935). The Court held that

[T]he liberty of the press is not confined to newspapers andperiodicals. It necessarily embraces pamphlets and leaflets. These



18

indeed have been historic weapons in the defense of liberty, as thepamphlets of Thomas Paine and others in our own history abundantly

attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.

Id . at 452.

Finally, “[i]t is clear that speech does not lose its First Amendment

protection because money is spent to project it. . . . even though it is carried

in a form that is ‘sold’ for profit, and even though it may involve a

solicitation to purchase or otherwise pay or contribute money.” Virginia

State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748,

761 (1976) (internal citations omitted). Bookstores and movie theaters are

for-profit enterprises, and the First Amendment nevertheless protects books

and movies. Smith v. California, 361 U.S. 147, 150 (1959) (books) (“It is of

course no matter that the dissemination takes place under commercial

auspices.”) (citations omitted); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,

501-502 (1952) (“That books, newspapers, and magazines are published and

sold for profit does not prevent them from being a form of expression whose

liberty is safeguarded by the First Amendment”) (footnote omitted). In

short, the First Amendment protects the photographs on the firstVIEW

website whether or not they are offered for sale.



19

Further, the availability of news sites like firstVIEW fuels the public’s

First Amendment right to receive information and ideas. “It is now well

established that the Constitution protects the right to receive information and

ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969), citing Martin v. City

of Struthers, 319 U.S. 141, 143 (1943) (“This freedom [of speech and press]

… necessarily protects the right to receive”); Lamont v. Postmaster General,

381 U.S. 301, 307-08 (1965) (Brennan, J., concurring). “[T]he right to

receive ideas is a necessary predicate to the recipient’s meaningful exercise

of his own rights of speech, press and political freedom.” Bd. of Educ. v.

Pico, 457 U.S. 853, 867 (1982).

As the District Court recognized, “There is no question that

Viewfinder’s activities fall within the purview of the First Amendment.” 406

F.Supp.2d at 282. The First Amendment therefore prohibits Appellants from

importing the French Order, which penalizes publication on the firstVIEW

website with no reference to these First Amendment values.

Moreover, these conflicts are not limited to the French Order per se.

As noted above, the legal regimes governing Internet speech of many

nations are fundamentally at odds with First Amendment jurisprudence.

They restrict websites precisely because “the Internet represents a brave new



20

world of free speech,” Blumenthal v. Drudge, 992 F. Supp. 44, 48 n.7

(D.D.C. 1998) – the direct opposite of our legal presumptions. Applying

such rules to U.S. websites simply because the Internet makes them

available without regard to international borders would be fundamentally at

odds with First Amendment policy.

In a number of cases, U.S. courts have refused to enforce libel

judgments based on foreign law because of the First Amendment limits on

American libel law declared in New York Times Co. v. Sullivan, 376 U.S.

254 (1964) (holding that standards of liability in defamation law must

accommodate First Amendment concerns).

For example, in Telnikoff v. Matusevitch, 702 A.2d 230, 238-239 (Md.

1997), the court denied enforcement of a foreign judgment as contrary to the

First Amendment, even though the allegedly defamatory statements were

published only in the LONDON DAILY TELEGRAPH. See also Bachchan v.

India Abroad Publications, Inc., 585 N.Y.S.2d at 665 (protections of free

speech “would be seriously jeopardized by the entry of foreign libel

judgments granted pursuant to standards deemed appropriate in England but

considered antithetical to the protections afforded the press by the U.S.

Constitution”). Similarly, in Ellis v. Time, Inc., 1997 WL 863267, 26 Media



21

L. Rptr. 1225 (D.D.C. 1997), the court held that applying English law to

allegedly defamatory publications in England would violate the Constitution.

Id ., at *13, 26 Media L. Rptr. at 1234; see also DeRoburt v. Gannett Co., 83

F.R.D. 574, 580 (D. Haw. 1979) (public policy requires application of First

Amendment to libel cases brought in United States).

Ordinarily, the question of whether to deny enforcement to a foreign

judgment on public policy grounds is a matter of discretion. See, e.g.,

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED

STATES § 422 (1987); N.Y. C.P.L.R. § 5302. In this case, however, the

conflict with U.S. law transcends mere questions of “public policy“; to

enforce the French Order would directly violate the First Amendment.

In such cases, enforcement is constitutionally forbidden. Matusevitch

v. Telnikoff , 877 F. Supp. at 4; Bachchan v. India Abroad Publications, Inc.,

585 N.Y.S. 2d at 662 (“if . . . the public policy to which the foreign

judgment is repugnant is embodied in the First Amendment . . . or the free

speech guaranty of the Constitution of this State, the refusal to recognize the

judgment should be, and is deemed to be, ‘constitutionally mandatory’”);

Ellis v. Time, Inc., 1997 W. 863267, at *13, 26 Media L. Rptr. at 1234

(D.D.C. 1997); see RECOGNITION AND ENFORCEMENT OF FOREIGN



22

JUDGMENTS: ANALYSIS AND PROPOSEDFEDERAL STATUTE Sec. 5(a)(vi)

(American Law Institute Proposed Final Draft (Apr. 11, 2005)) (“A foreign

judgment shall not be recognized or enforced in a court in the United States

if the party resisting recognition or enforcement establishes that[] the

judgment or the claim on which the judgment is based is repugnant to the

public policy of the United States, or to the public policy of a particular state

in the United States when the relevant legal interest, right or policy is

regulated by state law”) (emphasis added); see also Dow Jones & Co. v.

Harrods, Ltd ., 237 F.Supp.2d 394, 432–33, 446 (S.D.N.Y. 2002) (declining

to enjoin English libel action against a U.S.-based publisher on the ground

that it was premature, but adding that it would have “little hesitation” in

refusing to enforce a judgment inconsistent with First Amendment

principles) (citation omitted), aff’d , 346 F.3d 357 (2d Cir. 2003).

Similarly, the New York State Constitution guarantees freedom of

speech and press in even stronger terms than the First Amendment, declaring

in Article I, § 8 that “Every citizen may freely speak, write and publish his

or her sentiments on all subjects ... and no law shall be passed to restrain or

abridge the liberty of speech or of the press.” The words

reflect the deliberate choice of the New York State ConstitutionalConvention not to follow the language of the First Amendment ... but



23

instead to set forth our basic democratic ideal of liberty of the press instrong affirmative terms.

Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 249, 566 N.Y.S.2d 906,

567 N.E.2d 1270 (N.Y. 1991). The “consistent tradition in this State of

providing the broadest possible protection to ‘the sensitive role of gathering

and disseminating news of public events’ … call[s] for particular vigilance

by the courts of this State in safeguarding the free press against undue

interference.” Id. (quoting O’Neill v. Oakgrove Constr., 71 N.Y.2d 521,

528-529, 528 N.Y.S.2d 1, 523 N.E.2d 277. (N.Y. 1988)).

B. Enforcement of the French Judgment Would Be Repugnant

to the Public Policy of the United States as Expressed byCongress

Congress has found that: “[t]he rapidly developing array of Internet

and other interactive computer services available to individual Americans

represent an extraordinary advance in the availability of educational and

informational resources to our citizens“; “[t]hese services offer users a great

degree of control over the information that they receive, as well as the

potential for even greater control in the future as technology develops“;

“[t]he Internet and other interactive computer services offer a forum for a

true diversity of political discourse, unique opportunities for cultural

development, and myriad avenues for intellectual activity“; “[t]he Internet

and other interactive computer services have flourished, to the benefit of all



24

Americans, with a minimum of government regulation“; and “[i]ncreasingly

Americans are relying on interactive media for a variety of political,

educational, cultural, and entertainment services.“ 47 U.S.C. § 230(a).

Accordingly, the statutory policy of the United States is to protect the

Internet against both speech and economic regulation. Section 230 of the

Communications Act establishes that the public interest is best served by

“promot[ing] the continued development of the Internet and other interactive

computer services,” and by “preserv[ing] the vibrant and competitive free

market” for these services, “unfettered by Federal or State regulation.” 47

U.S.C. §§ 230(b)(1), (b)(2).

While the statute does not apply directly to the facts at issue here,

Section 230 provides another example of the conflict between U.S. policy

and that of other nations; it establishes as U.S. statutory policy that “[n]o

provider or user of an interactive computer service shall be treated as the

publisher or speaker of any information provided by another information

content provider.” 47 U.S.C. § 230(c)(1). In this way, Congress created “a

federal immunity to any cause of action that would make service providers

liable for information originating with a third-party user of the service.”

Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert.



25

denied , 524 U.S. 937 (1998). Just as with the cases cited above regarding

Internet censorship, U.S. courts have applied this statutory immunity

broadly. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003);

Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980, 984-985 (10th

Cir. 2000), cert. denied , 531 U.S. 824 (2000).

Such immunity from liability for third-party content is not the

international norm. In Godfrey v. Demon Internet, Ltd., 3 ILR (P&F) 98

(Q.B. 1999), for example, an English court held that an ISP could be held

responsible for defamatory postings by a third party to the extent it made

newsgroups containing the postings available. The court rejected the U.S.

policy embodied in Section 230, noting that “[t]he impact of the First

Amendment has resulted in a substantial divergence of approach between

American and English defamation law.” Id .

The French Order here does not simply create an “incentive” for self-

censorship; it absolutely requires it. Giving effect to the French judgment –

and, by extension, to all of the judgments from around the world that will

undoubtedly follow in its wake – will strip the Internet of its hallmark

characteristic as a “forum for a true diversity of political discourse, unique

opportunities for cultural development, and myriad avenues for intellectual



26

activity.” See 47 U.S.C. § 230(a)(3). It will eviscerate the protection for this

“extraordinary advance in the availability of educational and information

resources to our citizens” that Congress so clearly intended to provide. Id . §

230(a)(1). Because that result must inevitably frustrate “Congress’ desire to

promote unfettered speech on the Internet,” the French judgment cannot be

enforced. Zeran, 129 F.3d at 334.

III. THE FRENCH JUDGMENT’S INTELLECTUAL PROPERTYINTERPRETATIONS ARE INCONSISTENT WITH THE FIRST

AMENDMENT

The answer is no different because the French judgment is styled as an

“intellectual property” ruling. The French judgment here pertains to subject

matter that U.S. copyright law does not protect, and attempts to stifle

independent publication about a newsworthy event.

A. U.S. Copyright Law Is Tempered by Limitations on SubjectMatter and Scope

U.S. copyright law, developed in a constitutional framework mindful

of freedom of speech and press, provides structural and doctrinal

accommodations for this First Amendment-protected speech. Both the fair

use doctrine and the idea-expression distinction in copyright law serve

indispensable First Amendment functions.



27

The fair use doctrine prevents private censorship, and preserves First

Amendment freedoms, by shielding critical commentary and parody of

privately owned expression. See Harper & Row Publs, Inc. v. Nation

Enters., 471 U.S. 539, 560 (1985); Nihon Keizai Shimbun, Inc. v. Comline

Bus. Data, Inc., 166 F.3d 65, 74-75 (2d Cir. 1999); Twin Peaks Productions,

Inc. v. Publications Int’l, Ltd., 996 F.2d 1366, 1378 (2d Cir. 1993); cf. New

York Times Co. v. Sullivan, 376 U.S. 254, 265 (1964).

The idea-expression distinction ensures that uncopyrightable facts and

ideas and unpatentable functional principles remain in the public domain for

future creators to build on. Harper & Row , 471 U.S. at 556; Attia v. Society

of New York Hosp., 201 F.3d 50, 54 (2d Cir. 1999), cert. denied , 121 S. Ct.

109 (2000); Sid & Marty Krofft Television v. McDonald’s Corp., 562 F.2d

1157, 1170 (9th

Cir. 1977).

These limits on the scope of copyright are designed to sever the link

between state-granted monopolies and censorship. Without these doctrines

as safety valves to prevent “abuse of the copyright owner’s monopoly as an

instrument to suppress” facts, ideas, and critical commentary, copyright law

would impermissibly abridge the freedom of speech. Harper & Row , 471

U.S. at 559-60. Foreign laws, operating in distinct legal frameworks, lack



28

these built-in safeguards. The French judgment that Appellants seek to

enforce offers neither subject matter exclusions nor fair use considerations.

It is therefore necessary for American courts to assess the First Amendment

considerations anew when foreign judgments are invoked to bar U.S. speech.

B. The French Court’s Expansive Judgment Is Inconsistentwith the First Amendment

Appellants cannot save the French judgment by framing it as a

decision under U.S. copyright law. That is neither the proper way to read a

foreign judgment, nor the correct application of U.S. law to the facts at issue.

As Viewfinder demonstrates, even if the photographs at issue here

were reproductions of copyrightable content under U.S. law, the firstVIEW

site would be a permissible fair use; the fair use doctrine strongly favors

news reporting. 17 U.S.C. § 107 (“Notwithstanding the provisions of

sections 106 and 106A, the fair use of a copyrighted work … for purposes

such as … news reporting … is not an infringement of copyright.”) This

Court need not even reach that analysis, however, because this is not a

complaint arising under U.S. law or even a dispute over subject matter

protected by U.S. copyright law. It is instead an attempt to enforce a foreign

judgment claiming exclusivity in material to which U.S. law does not grant

copyright protection.



29

As a matter of U.S. law, the photographs could not infringe because

clothing designs are not copyrightable; the United States favors public

access to the ideas and aesthetics of fashion design over copyright

exclusion. See Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002

(2d Cir. 1995) (“clothes are not copyrightable,” although fabric designs are).

By bringing their judgment here for enforcement, Appellants are not trying

to protect rights analogous to those granted by U.S. copyright, but rather to

use incompatible French law to silence a U.S. speaker.

CONCLUSION

Internet publication offers a new wealth of speech opportunities. It

also provokes wide-ranging attempts to censor that speech. In the United

States, courts have been steadfast in supporting the Internet as a preserve for

free expression, striking down restrictions on speech. This case, however,

presents this Court with a situation that could undermine the protections of

U.S. law and handicap the further development of the Internet. This Court

should make clear that efforts to import censorship to the United States

through the vehicle of this new medium are repugnant to U.S. law. Respect

for the laws of other nations does not require enforcement of judgments in

U.S. courts that would undermine longstanding legal and constitutional

protections.



30

Accordingly, Amici respectfully urge this court to affirm the decision below

Respectfully submitted,________________________________

Wendy Seltzer, Esq. WS-4188

250 Joralemon St.

Brooklyn, NY 11201

phone: (718) 780-7961

fax: (413) 702-3884

email: [email protected]

Counsel for Amici Curiae

Date: April 10, 2006



CERTIFICATE OF COMPLIANCE

In accordance with Federal Rule of Appellate Procedure 32(a)(7), the

undersigned counsel certifies that the foregoing brief contains 6,350 words.

This brief is in 14 point Times New Roman type. OpenOffice.org 2.0 was

used to count the words in the foregoing brief.

_________________________

WENDY SELTZER

eff: viewfinder-amicus-final

Documents